State v. Tingey
| Decision Date | 25 February 2016 |
| Docket Number | No. 20140557–CA.,20140557–CA. |
| Citation | 368 P.3d 467 |
| Parties | STATE of Utah, Appellee, v. Mark Phillip TINGEY, Appellant. |
| Court | Utah Court of Appeals |
Dean N. Zabriskie, Stephen R. Allred, Rhome D. Zabriskie, Provo, and Kevin Mark Kemp, for Appellant.
Sean D. Reyes and Marian Decker, Salt Lake City, for Appellee.
1
Opinion
¶ 1 Mark Phillip Tingey appeals the trial court's ruling on his motion to suppress statements he made during a police interrogation. We affirm.
¶ 2 In February 2011, Deputy O'Hara of the Utah County Sheriff's Office located an IP address in Utah County that had shared a number of known child pornography files. He learned that the IP address was assigned to a Brigham Young University (BYU) student living in university housing. Deputy O'Hara obtained a search warrant for the apartment and went with six to eight other officers, including officers from the BYU Police Department, to execute the warrant.
¶ 3 At least two of the BYU officers were in uniform, while the other officers wore plain clothes with police vests. When the officers knocked on the door of the apartment, Tingey's wife answered. The officers entered the apartment and found Tingey asleep in his bedroom. Deputy O'Hara asked Tingey if they "could step into another room to talk." Tingey "pointed" the officers to a second bedroom used as an office/workout room. Sergeant Burr of the BYU Police Department accompanied Deputy O'Hara and Tingey into the second bedroom. Deputy O'Hara placed an ironing board between Tingey and the officers to hold his recording device and laptop. The bedroom door stayed open throughout the interview, and other officers went in and out of the room.
¶ 4 When Tingey initially claimed to have accidentally downloaded pornography and to have immediately deleted the file-sharing software, the officers informed him that they "wouldn't be here if there was just one video." Sergeant Burr then warned Tingey, Sergeant Burr went on to say, "[W]e have the ability right now to destroy everything that's going on in your life." Immediately following Sergeant Burr's statements, Deputy O'Hara clarified, "I appreciate you being willing to talk to us because, you know, you don't have to."
¶ 5 The officers continued talking to Tingey for several minutes before an officer came to tell them that Tingey's wife was leaving for work and needed to retrieve some socks from the room. The officer asked Deputy O'Hara, "[D]o you want [Tingey's wife] to come say goodbye?" Deputy O'Hara replied, Tingey then went into the hallway to say goodbye to his wife. Sergeant Burr left the room with Tingey, and Deputy O'Hara went to check on the progress of the officers who were going through Tingey's computer. After Tingey returned to the second bedroom, Deputy O'Hara continued the interview and ultimately obtained a number of incriminating statements from Tingey.
¶ 6 Tingey was charged with ten counts of sexual exploitation of a minor, a second-degree felony. See Utah Code Ann. § 76–5a–3(1)(a) (LexisNexis Supp. 2009). Before trial, Tingey filed a motion to suppress the police interview on the ground that he was subjected to custodial interrogation without a Miranda warning. Following an evidentiary hearing, the trial court made detailed findings of fact and conclusions of law in analyzing the four custody factors, see infra ¶ 12. The court ultimately determined that Tingey was not in custody at the time of the interview and denied his motion to suppress. At trial, defense counsel obtained a directed verdict on two of the ten counts of sexual exploitation of a minor, and Tingey was ultimately convicted of the remaining eight counts. Tingey now appeals the trial court's denial of his motion to suppress.2
¶ 7 Tingey asserts that the trial court erred in determining that his interrogation was not custodial and in denying his motion to dismiss. Whether an interrogation is custodial is a mixed question of fact and law, which we review nondeferentially for correctness. State v. Levin (Levin II ), 2006 UT 50, ¶¶ 42, 44, 46, 144 P.3d 1096. We review the trial court's underlying factual findings for clear error. See id. ¶ 20.
¶ 8 As a threshold matter, we address Tingey's assertion that the trial court clearly erred in finding that Sergeant Burr's threat was "inaudible." He asserts that this erroneous finding led the trial court to disregard the threat as a factor in its analysis of whether he was in custody and that the error calls into doubt the trial court's "entire legal analysis." However, Tingey's argument overstates the importance of this finding.
(Fourth alteration in original.) Notwithstanding the court's determination that part of the statement was inaudible on the recording, the transcriber was apparently able to hear it, as the transcript records the statement as "we have the ability right now to destroy everything that's going on in your life." Furthermore, Deputy O'Hara testified at the evidentiary hearing that the threat was made as transcribed.
¶ 10 But even assuming that this evidence of the statement's contents makes the trial court's finding that the statement was inaudible clearly erroneous, the finding did not lead the trial court to disregard the threat in its analysis, as Tingey suggests. Despite finding that the statement was inaudible, the trial court found that Sergeant Burr made a "threatening statement" to Tingey "indicating that the potential allegations could be destructive to Tingey." Thus, the trial court ultimately found that the threat was made, and we employ that factual finding in our analysis of whether Tingey was in custody.
¶ 11 The Fifth Amendment to the United States Constitution protects criminal defendants against compulsory self-incrimination. U.S. Const. amend. V. "To protect a person's Fifth Amendment right to avoid self incrimination, police must give pre-interrogation warnings to persons in custody." State v. Doran, 2007 UT App 119, ¶ 10, 158 P.3d 1140 .
¶ 12 "[A] person is in custody for purposes of Miranda when the person's ‘freedom of action is curtailed to a degree associated with formal arrest.’ " State v. Levin (Levin III ), 2007 UT App 65, ¶ 12, 156 P.3d 178 (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) ) (additional citation and internal quotation marks omitted). Whether a person is in custody "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam). Our supreme court has identified four factors to examine in making this determination: "(1) the site of interrogation; (2) whether the investigation focused on the accused;[3 ](3) whether the objective indicia of arrest were present; and (4) the length and form of interrogation." Salt Lake City v. Carner, 664 P.2d 1168, 1171 (Utah 1983).
¶ 13 The first factor, the site of the interrogation, weighs against a finding of custody. The interrogation took place in Tingey's apartment. Tingey suggested the second bedroom as a place where he could talk with the officers. The door was open, and other officers came and went throughout the interview. Despite Sergeant Burr's threats, Deputy O'Hara reiterated to Tingey that he did not have to talk to the officers. Tingey even left the room at one point to say goodbye to his wife when she left for work. Nevertheless, Tingey emphasizes the fact that his movement was restricted by an ironing board that was placed in front of him to hold Deputy O'Hara's recording device and computer. Tingey asserts that the ironing board essentially acted as a "blockade" to keep him in the room and in his seat. Generally, an interview in a suspect's home does "not amount to custodial interrogation" as long as the suspect's "freedom of movement was not hindered." State v. Worthington, 970 P.2d 714, 716 (Utah Ct.App.1998) (citing Beckwith v. United States, 425 U.S. 341, 347, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) ). Although the ironing board may have limited the movement of those in the room, it appears to have been placed in front of Tingey as a matter of convenience, not for the purpose of keeping him in the room. The fact that the door remained open, that Tingey was told he did not have to talk to the officers, and that he left the room at one point to say goodbye to his wife indicate that he was not confined for purposes of the interrogation but had the freedom to leave or terminate the interrogation at any point.
¶ 14 The second factor, whether the investigation focused on the accused, weighs in favor of a finding of custody. Although officers may not have initially known who was downloading criminal material at Tingey's address, upon arriving at the home they "quickly conclude[d] that Tingey [was] their suspect," and "[t]he focus on Tingey as the perpetrator was ... quite clear within the first few minutes of the interview."
¶ 15 The third factor, whether objective indicia of arrest...
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State v. Macdonald
...custodial is a mixed question of fact and law, which we review nondeferentially for correctness." State v. Tingey , 2016 UT App 37, ¶ 7, 368 P.3d 467 (citing State v. Levin , 2006 UT 50, ¶¶ 42, 44, 46, 144 P.3d 1096 ). ¶ 18 The State also contends that the district court exceeded its discre......